Class action lawsuit threatens school districts with mask mandates

SPRINGFIELD — A Sangamon County judge is considering a motion to bar Illinois schools from requiring people to wear face masks in class and evicting students and staff from school buildings if they have been in close contact with someone who has tested positive for COVID -19 was tested.

District Judge Raylene Grischow last week heard oral arguments in a class action lawsuit against 145 school districts filed last year by Greenville attorney Thomas DeVore, who has unsuccessfully challenged the state’s COVID-19 mitigation measures in several other lawsuits.

In September, DeVore filed a request for a temporary restraining order to allow students to continue in-person classes at the school.

Attorney General Kwame Raoul’s office is defending the counties, and the Illinois Education Association, along with the Illinois Federation of Teachers, have intervened in the case on behalf of the teachers they represent.

The cases were originally filed individually in multiple Illinois counties, but were later consolidated in Sangamon County Circuit Court.

It is about whether school districts are violating state laws by implementing orders from Governor JB Pritzker and guidelines from the Illinois Department of Public Health and the Illinois State Board of Education to impose certain mitigation measures to hold in-person classes.

These measures include requirements that all students, staff and visitors to school buildings wear face coverings, that students and staff are barred from buildings if they have tested positive for COVID-19 or have been in close contact with another person who has, and that school staff are vaccinated or tested weekly.

In the lawsuit, DeVore argues that exclusions amount to a form of “quarantine” and that under Health Department law, schools cannot exclude students on public health grounds without parental consent or a quarantine order from a health department.

He also argues that schools have no legal authority to require vaccinations or the wearing of masks unless a public health department has issued a quarantine order.

“The plaintiffs have the right to insist that students not be expelled from the school and are denied their right to personal education except as provided by law,” the lawsuit reads.

“Quite simply, the defendants are violating the students’ and their parents’ or legal guardians’ legal right to choose whether wearing a mask as treatment or some form of modified quarantine for the purpose of limiting the spread of a contagious disease is appropriate without a court order,” says the lawsuit

DeVore has served as counsel in numerous court cases representing companies and individuals challenging Pritzker’s orders during the pandemic. In one he represented Republican gubernatorial nominee Darren Bailey, R-Xenia.

However, Judge Grischow threw out that case in December 2020, noting that the governor has the power to issue multiple consecutive disaster declarations resulting from an ongoing disaster.

In a motion to dismiss the case, the Illinois Education Association argued that masking and exclusions are not “quarantine” and therefore not anticipated by the Public Health Act. It also argues that the IDPH and ISBE joint guidance gives school districts the legal authority to impose mask and exclusion mandates.

In a separate filing, the Illinois Federation of Teachers argued that the public health interest in preventing the spread of COVID-19 outweighs any individual right of the students and parents contesting the mandates.

“Those parents, students, teachers and staff not standing trial have a compelling interest in enforcing mitigation measures that reflect the best judgment of policymakers faced with rapidly changing circumstances,” lawyers for the IFT wrote.

The lawsuit against the school districts has generated significant public interest. During a Jan. 5 hearing, Grischow noted in a diary entry, “The court and court receptionist received emails from outside sources setting out their position on the issues discussed in the case.”

“The court did not review the emails and, for security reasons, turned them over to the US Marshals Office for review,” Grischow wrote. “The emails are not kept or checked by the court. Any opinion expressed on these matters is based on the law and not personal opinions.”

Capitol News Illinois is a nonprofit, nonpartisan news service that reports on the state government and is distributed to more than 400 newspapers statewide. It is primarily funded by the Illinois Press Foundation and the Robert R. McCormick Foundation.

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